PART 5POWERS OF ACQUISITION AND POSSESSION

Compulsory acquisition of land

article 24 + 24.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development, or to facilitate it, or is incidental to it, or is required as replacement land.

(2) This article is subject to article 27(2) (compulsory acquisition of rights and imposition of restrictive covenants), article 26 (time limit for exercise of authority to acquire land compulsorily), article 33(9) (temporary use of land for carrying out the authorised development), article 36 (statutory undertakers) and article 39 (Crown rights).

Compulsory acquisition of land – incorporation of the mineral code

article 25 + 25.  Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981(1) is incorporated in this Order subject to the modifications that—

article 25 a + (a)paragraph 8(3) is not incorporated;

article 25 b + (b)for “the acquiring authority” substitute “the undertaker”;

article 25 c + (c)for “undertaking” substitute “authorised development”; and

article 25 d + (d)for “compulsory purchase order” substitute “this Order”.

Time limit for exercise of authority to acquire land compulsorily

article 26 + 26.—(1) After the end of the period of 10 years beginning on the start date—

article 26 1 a + (a)no notice to treat is to be served under Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act; and

article 26 1 b + (b)no declaration is to be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 30 (application of the 1981 Act).

(2) The authority conferred by article 33 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

term start date + (3) In this article “start date” means the later of the day after—

article 26 3 a + (a)the period for legal challenge in section 118 of the 2008 Act expires; or

article 26 3 b + (b)the final determination of any legal challenge under that section,

whichever is later.

Compulsory acquisition of rights and imposition of restrictive covenants

article 27 + 27.—(1) Subject to paragraphs (2) to (4), the undertaker may acquire such rights over the Order land, or impose such restrictive covenants affecting the Order land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 24 (compulsory acquisition of land) by creating them as well as acquiring rights already in existence.

(2) In the case of the Order land specified in column (1) of Schedule 5 (land in which only new rights etc. may be acquired) the undertaker’s powers of compulsory acquisition are limited to the acquisition of such wayleaves, easements, new rights in the land or the imposition of restrictive covenants, as may be required for or in connection with the authorised development for the purposes specified in relation to that land in column (2) of that Schedule.

(3) The power under paragraph (1) to acquire the rights and to impose the restrictive covenants described in Schedule 5 (land in which only new rights etc. may be acquired) for the benefit of statutory undertakers or for the benefit of any other person—

article 27 3 a + (a)does not preclude the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 5 as may be required for the benefit of any other statutory undertaker or any other person; and

article 27 3 b + (b)must not be exercised by the undertaker in a way that precludes the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 5 as are required for the benefit of any other statutory undertaker or any other person.

(4) Subject to Schedule 2A (counter-notice requiring purchase of land not in notice to treat)(2) of the 1965 Act, as modified by paragraph (1) of Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants), where the undertaker acquires a right over land or the benefit of a restrictive covenant affecting land under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land.

(5) Schedule 6 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

(6) The rights which may be acquired permanently and restrictive covenants imposed permanently in, on, over or under plot 6-04 (as shown on the land plans) may only be acquired up to three metres laterally on each side of the location of the constructed fuel pipeline and associated installations measured from their centre line.

Private rights over land

article 28 + 28.—(1) Subject to the provisions of this article, all private rights and restrictions over land subject to compulsory acquisition under this Order are extinguished—

article 28 1 a + (a)as from the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

article 28 1 b + (b)on the date of entry on the land by the undertaker under section 11(1)(3) (powers of entry) of the 1965 Act,

whichever is the earlier.

(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of the rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or the burden of the restrictive covenant—

article 28 2 a + (a)as from the date of the acquisition of the right or the benefit of the restrictive covenant by the undertaker, whether compulsorily or by agreement; or

article 28 2 b + (b)on the date of entry on the land by the undertaker under section 11(1) (powers of entry) of the 1965 Act,

whichever is the earlier.

(3) Subject to the provisions of this article, all private rights and restrictions over land owned by the undertaker that are within the Order land are extinguished at the start of any activity authorised by this Order which interferes with or breaches those rights.

(4) Subject to the provisions of this article, all private rights and restrictions over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.

(5) Any person who suffers loss by the extinguishment or suspension of any private right under this article is entitled to compensation in accordance with the terms of section 152(4) (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(6) This article does not apply in relation to any right to which section 138(5) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 36 (statutory undertakers) applies.

(7) Paragraphs (1) to (4) have effect subject to—

article 28 7 a + (a)any notice given by the undertaker before—

article 28 7 a i + (i)the completion of the acquisition of the land or the acquisition of the rights over or the imposition of the restrictive covenant affecting the land;

article 28 7 a ii + (ii)the undertaker’s appropriation of the land;

article 28 7 a iii + (iii)the undertaker’s entry onto the land; or

article 28 7 a iv + (iv)the undertaker’s taking temporary possession of the land,

that any or all of those paragraphs do not apply to any right specified in the notice; and

article 28 7 b + (b)any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.

(8) If any such agreement as is referred to in paragraph (7)(b)—

article 28 8 a + (a)is made with a person in or to whom the right is vested or belongs; and

article 28 8 b + (b)is expressed to have effect also for the benefit of those deriving title from or under that person,

the agreement is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

(9) References in this article to private rights over land include any right of way, trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Modification of Part 1 of the 1965 Act

article 29 + 29.—(1) Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act, as applied to this Order by section 125(6) (application of compulsory acquisition provisions) of the 2008 Act is modified as follows.

(2) in section 4A(1)(7) (extension of time limit during challenge)—

article 29 2 a + (a)for “section 23 (application to the High Court in respect of compulsory purchase order) of the Acquisition of Land Act 1981” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008”; and

article 29 2 b + (b)term the applicable period + for “the applicable period” for the purposes of section 4 (time limit for giving notice to treat) substitute “the ten year period mentioned in article 26 (time limit for exercise of authority to acquire land compulsorily) of the London Luton Airport Expansion Development Consent Order 2025”.

(3) In section 11A(8) (powers of entry: further notices of entry)—

article 29 3 a + (a)in subsection (1)(a), after “land” insert “under that provision”;

article 29 3 b + (b)in subsection (2), after “land” insert “under that provision”.

(4) In section 22(2) (interests omitted from purchase), for “section 4 of this Act” substitute “article 26 (time limit for exercise of authority to acquire land compulsorily) of the London Luton Airport Expansion Development Consent Order 2025”.

(5) In Schedule 2A(9) (counter-notice requiring purchase of land not in notice to treat)—

article 29 5 a + (a)for paragraphs 1(2) and 14(2) substitute—

“(2) But see article 31(3) (acquisition of subsoil or airspace only) of the London Luton Airport Expansion Development Consent Order 2025, which excludes the acquisition of subsoil or airspace only from this Schedule.”; and

article 29 5 b + (b)after paragraph 29, insert—

“PART 4INTERPRETATION

30.  In this Schedule, references to entering on and taking possession of land do not include doing so under article 20 (protective work to buildings), article 21 (authority to survey and investigate the land), article 33 (temporary use of land for carrying out the authorised development) or 34 (temporary use of land for maintaining the authorised development) of the London Luton Airport Expansion Development Consent Order 2025.”.

Application of the 1981 Act

article 30 + 30.—(1) The 1981 Act applies as if this Order were a compulsory purchase order.

(2) The 1981 Act, as applied by paragraph (1), has effect with the following modifications.

(3) In section 1 for subsection (2) substitute—

“(2) This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order.”.

(4) In section 5(10) (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(5) Omit section 5A(11) (time limit for general vesting declaration).

(6) In section 5B(1)(12) (extension of time limit during challenge)—

article 30 6 a + (a)for “section 23 (application to High Court in respect of compulsory purchase order) of the Acquisition of Land Act 1981” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008”; and

article 30 6 b + (b)term the applicable period + for “the applicable period” for the purposes of section 5A (time limit for general vesting declaration) substitute “the ten year period mentioned in article 26 (time limit for exercise of authority to acquire land compulsorily) of the London Luton Airport Expansion Development Consent Order 2025”.

(7) In section 6(13) (notices after execution of declaration) for subsection (1)(b) for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(8) In section 7(14) (constructive notice to treat) in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(9) In Schedule A1(15) (counter-notice requiring purchase of land not in general vesting declaration), omit paragraph 1(2).

(10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act to the compulsory acquisition of land under this Order.

Acquisition of subsoil or airspace only

article 31 + 31.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or of the airspace over the land referred to in article 24(1) (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where the undertaker acquires any part of, or rights in, the subsoil of or the airspace over land referred to in paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only—

article 31 3 a + (a)Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 29 (modification of Part 1 of the 1965 Act));

article 31 3 b + (b)Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

article 31 3 c + (c)section 153(4A)(16) (reference of objection to Upper Tribunal: general) of the 1990 Act.

(4) Paragraphs (2) and (3) are to be disregarded where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

Rights under or over streets

article 32 + 32.—(1) The undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order land as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

(3) Paragraph (2) does not apply in relation to—

article 32 3 a + (a)any subway or underground building; or

article 32 3 b + (b)any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, will be entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 (sharing of cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out the authorised development

article 33 + 33.—(1) The undertaker may, in connection with the carrying out of the authorised development—

article 33 1 a + (a)enter on and take temporary possession of—

article 33 1 a i + (i)the land specified in column (1) of Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (2) of that Schedule relating to the part of the authorised development specified in column (3) of that Schedule; and

article 33 1 a ii + (ii)any other Order land in respect of which no notice of entry has been served under section 11 (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4 (execution of declaration) of the 1981 Act;

article 33 1 b + (b)remove any buildings, apparatus, fences, landscaping, debris and vegetation from that land;

article 33 1 c + (c)use any private road within the Order land for the passage of persons or vehicles (with or without materials, plant and machinery);

article 33 1 d + (d)construct temporary works (including the provision of means of access) or buildings on that land; and

article 33 1 e + (e)construct any works on that land as are mentioned in Schedule 1 (authorised development).

(2) Not less than 28 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land, and explain the purpose for which entry is taken in respect of land specified under paragraph (1)(a)(ii).

(3) The undertaker must not, without the agreement of the owners of the land, remain in possession of any land under this article—

article 33 3 a + (a)in the case of land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (3) of Schedule 7, or

article 33 3 b + (b)in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by the end of that period, served a notice of entry under section 11 (powers of entry) of the 1965 Act or made a declaration under section 4 (execution of declaration) of the 1981 Act in relation to that land.

(4) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—

article 33 4 a + (a)replace a building removed under this article;

article 33 4 b + (b)restore the land on which any permanent works have been constructed under paragraph (1)(d);

article 33 4 c + (c)remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised development;

article 33 4 d + (d)remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development; or

article 33 4 e + (e)remove or reposition any apparatus belonging to statutory undertakers or necessary mitigation works.

(5) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(7) Any dispute as to the satisfactory removal of temporary works and restoration of land under paragraph (4) does not prevent the undertaker giving up possession of the land.

(8) Subject to article 48 (no double recovery), nothing in this article affects any liability to pay compensation under section 152(17) (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

(9) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(10) Section 13(18) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125(19) of the 2008 Act (application of compulsory acquisition provisions) of the 2008 Act.

(11) Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in paragraph (1).

Temporary use of land for maintaining the authorised development

article 34 + 34.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—

article 34 1 a + (a)enter upon and take temporary possession of any land within the Order land if such possession is reasonably required for the purpose of maintaining the authorised development;

article 34 1 b + (b)enter on any land within the Order land for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised development; and

article 34 1 c + (c)construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise the undertaker to take temporary possession of—

article 34 2 a + (a)any house or garden belonging to a house; or

article 34 2 b + (b)any building (other than a house) if it is for the time being occupied.

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and explain the purpose for which entry is taken.

(4) The undertaker is not required to serve notice under paragraph (3) where the undertaker has identified a potential risk to the safety of—

article 34 4 a + (a)the authorised development or any of its parts;

article 34 4 b + (b)the public; or

article 34 4 c + (c)the surrounding environment,

and in such circumstances, the undertaker may enter the land under paragraph (1) subject to giving such notice as is reasonably practicable in the circumstances.

(5) The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

(6) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(7) Any dispute as to the removal of temporary works and restoration of land under paragraph (6) does not prevent the undertaker giving up possession of the land.

(8) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(9) Any dispute as to a person’s entitlement to compensation under paragraph (8), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(10) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (8).

(11) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(12) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

term the maintenance period + term the maintenance period + (13) In this article “the maintenance period”, in relation to any part of the authorised development means the period of 5 years beginning with the date on which that part of the authorised development is completed, save that in relation to a landscaping scheme referred to in paragraphs 9 and 10 of Schedule 2 (requirements) to this Order, “the maintenance period” means such period as may be specified in relation to that landscaping scheme in accordance with paragraph 10(5) of Schedule 2 to this Order.

Special category land

article 35 + 35.—(1) On the exercise by the undertaker of the Order rights, the special category land is not to vest in the undertaker (or any specified person), and the undertaker may not acquire any rights over the special category land, until the replacement land has been acquired in the undertaker’s name or is otherwise in the name of persons who owned the special category land on the date those powers are exercised and the relevant planning authority has certified that a satisfactory scheme for the provision of replacement land including a timetable for the implementation of the scheme has been received from the undertaker.

(2) On the requirements of paragraph (1) being satisfied—

article 35 2 a + (a)the special category land is to vest in the undertaker (or any specified person) and be discharged from all rights, trusts and incidents to which it was previously subject; and

article 35 2 b + (b)the rights to be acquired over the special category land are to vest in the undertaker and the special category land is to be discharged from all rights, trusts and incidents to which it was previously subject but only in so far as their continuance would be inconsistent with the exercising by the undertaker of the Order rights.

(3) The undertaker must implement the scheme certified by the relevant planning authority under paragraph (1) and on the date on which the replacement land is laid out and provided in accordance with that scheme, the replacement land is to vest in the persons in whom the special category land was vested on the date of the exercise of the Order powers (if the replacement land is not already owned by those persons) and is to be subject to the same rights, trusts and incidents as attached to the special category land.

(4) In this article—

term order rights + “Order rights” means rights and powers exercisable over the special category land by the undertaker under article 24 (compulsory acquisition of land) and article 27 (compulsory acquisition of rights and imposition of restrictive covenants);

term the replacement land + “the replacement land” means the land identified as replacement land for the special category land in the book of reference and on the plans entitled “special category land plans”;

term the special category land + “the special category land” means the land identified as forming part of an open space, or fuel or field allotment in the book of reference and on the plans entitled “special category land plans”; and

term specified person + “specified person” means a person other than the undertaker for whose benefit the land or rights are being acquired.

Statutory undertakers

article 36 + 36.—(1) Subject to the provisions of Schedule 8 (protective provisions), article 27 (compulsory acquisition of rights and imposition of restrictive covenants) and paragraph (2), the undertaker may—

article 36 1 a + (a)acquire compulsorily the land belonging to statutory undertakers within the Order land and described in the book of reference;

article 36 1 b + (b)acquire existing rights, create and acquire new rights and impose restrictive covenants over the land belonging to statutory undertakers within the Order land and described in the book of reference;

article 36 1 c + (c)extinguish or suspend the rights of, or remove, relocate or reposition apparatus belonging to, statutory undertakers over or within the Order land;

article 36 1 d + (d)construct the authorised development in such a way as to cross underneath or over apparatus belonging to statutory undertakers and other like bodies within the Order land; and

article 36 1 e + (e)construct over existing apparatus belonging to statutory undertakers any necessary track or roadway (whether temporary or permanent) together with the right to maintain or remove the same, and install such service media under or over the existing apparatus needed in connection with the authorised development.

(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—

article 36 2 a + (a)Part 3 (street works in England and Wales) of the 1991 Act; and

article 36 2 b + (b)article 37 (apparatus and rights of statutory undertakers in stopped-up streets) of this Order.

Apparatus and rights of statutory undertakers in stopped-up streets

article 37 + 37.—(1) Where a street is stopped up under article 14 (permanent stopping up of public rights of way), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 14 (permanent stopping up of public rights of way) any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—

article 37 2 a + (a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the statutory utility may reasonably determine and have power to place it; or

article 37 2 b + (b)provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).

(3) Subject to the following provisions of this article, the undertaker must pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—

article 37 3 a + (a)the execution of the relocation works required in consequence of the stopping up of the street; and

article 37 3 b + (b)the doing of any other work or thing rendered necessary by the execution of the relocation works.

(4) If in the course of the execution of relocation works under paragraph (2)—

article 37 4 a + (a)apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or

article 37 4 b + (b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.

(5) For the purposes of paragraph (4)—

article 37 5 a + (a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

article 37 5 b + (b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

(6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the statutory utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

article 37 7 a + (a)the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

article 37 7 b + (b)the allowable costs are to be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this article—

term apparatus + “apparatus” has the same meaning as in Part 3 of the 1991 Act;

term relocation works + “relocation works” means work executed, or apparatus provided, under paragraph (2); and

term statutory utility + “statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1)(20) (interpretation of Chapter 1) of the 2003 Act.

Recovery of costs of new connections

article 38 + 38.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 36 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 36 (statutory undertakers), any person who is—

article 38 2 a + (a)the owner or occupier of premises the drains of which communicated with that sewer; or

article 38 2 b + (b)the owner of a private sewer which communicated with that sewer,

is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.

(3) This article does not have effect in relation to apparatus to which article 37 (apparatus and rights of statutory undertakers in stopped-up streets) or Part 3 of the 1991 Act applies.

(4) In this paragraph—

term public communications provider + “public communications provider” has the same meaning as in section 151(1) (interpretation of Chapter 1) of the 2003 Act; and

term public utility undertaker + “public utility undertaker” means a gas, water, electricity or sewerage undertaker.

Crown rights

article 39 + 39.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker or any lessee or licensee to take, use, enter upon or in any manner interfere with any land or rights of any description—

article 39 1 a + (a)belonging to His Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;

article 39 1 b + (b)belonging to His Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or

article 39 1 c + (c)belonging to a government department or held in trust for His Majesty for the purposes of a government department without the consent in writing of that government department.

(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory acquisition of an interest in any Crown Land (as defined in the 2008 Act) which is for the time being held otherwise than by or on behalf of the Crown.

(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions, and is deemed to have been given in writing where it is sent electronically.

Disregard of certain improvements, etc.

article 40 + 40.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over any land under this Order, the tribunal must not take into account—

article 40 1 a + (a)any interest in land; or

article 40 1 b + (b)any enhancement of the value of any interest in land by reason of any building erected, works carried out or improvement or alteration made on the relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the carrying out of the works or the making of the improvement or alteration as part of the authorised development was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

term relevant land + (2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works constructed or the improvement or alteration made as part of the authorised development, directly or indirectly concerned.

Set off for enhancement in value of retained land

article 41 + 41.—(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised development.

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under article 27 (compulsory acquisition of rights and imposition of restrictive covenants), the tribunal must set off against the value of the rights so acquired—

article 41 2 a + (a)any increase in the value of the land over which the new rights are required; and

article 41 2 b + (b)any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,

which will accrue to that person by reason of the construction of the authorised development.

(3) The 1961 Act has effect, subject to paragraphs (1) and (2) as if this Order were a local enactment for the purposes of that Act.